Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F05903061-0. Robert H. Oliver, Judge.
Deanna F. Lamb, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Following a jury trial, Carlos Abraham Rocha (appellant) was convicted of first degree murder in violation of Penal Code section 187, subdivision (a) and forcible rape in violation of section 261, subdivision (a)(2). The jury also found true the special circumstance that the murder was committed during the commission of a rape, in violation of section 190.2, subdivision (a)(17). The trial court sentenced appellant to life without the possibility of parole on the murder. An upper term of eight years was imposed on the forcible rape and stayed pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, appellant contends: (1) the trial court erred when it denied his motion to exclude his statements to the police; (2) the prosecutor committed misconduct during questioning of two witnesses; (3) the trial court erred when it admitted certain photographs of the victim into evidence; (4) the trial court erred when it refused to give an instruction on the absence of flight; (5) the reasonable doubt instruction was constitutionally deficient; and (6) the trial court erred when it imposed a parole revocation fine. We agree only with appellant’s last contention, and in all other respects affirm.
FACTS
On the afternoon of April 23, 2005, 19-year-old Joanna Aparicio (Ms. Aparicio or the victim) attended a family party and went shopping with her sister Minerva. Minerva knew that Ms. Aparicio planned to go bowling with some friends that evening and later get together with her boyfriend Isaac Gomez at a party in Orosi.
Ms. Aparicio picked up her friend Robert “Boly” Munoz about 8:30 p.m. and the two went bowling with a group of friends, including Eric Pena, Francisco Velasco, and Anthony Solis. Pena invited appellant to join the group. Appellant, who lived with his wife at his mother’s house, knew Pena but did not know Ms. Aparicio.
Appellant had been at a party earlier that day at Gabriel Zapata’s house, along with a group of friends including Jesus Amezcua and Jose Daniel Mendez. The group had been drinking beer and hard liquor and using marijuana and methamphetamine.
Ms. Aparicio, along with Munoz, Pena and appellant, all in Ms. Aparicio’s car, stopped at appellant’s mother’s house so appellant could get some money for bowling. Ms. Aparicio’s car and another car of bowlers arrived at a bowling alley in Clovis around 9:00 p.m. Ms. Aparicio told Munoz that she planned to go to the Orosi party later that evening to meet her boyfriend.
Ms. Aparicio’s good friend David Contreras spoke to her on the phone several times that day. Contreras planned to attend the Orosi party with Ms. Aparicio’s boyfriend Isaac Gomez. Ms. Aparicio was excited about attending the party, but she never arrived there.
Ms. Aparicio spoke to her sister by cell phone at 11:41 p.m., after the group finished bowling. She said she had two passengers in her car and was going to drop them off before coming home to get ready for the party. Minerva never heard from her sister again.
Two carloads of bowlers left the bowling alley around 11:30 p.m. Munoz wanted to go home, so Ms. Aparicio dropped him off at his friend Eric Alba’s house, leaving only Ms. Aparicio and appellant in her car. Before they arrived at Alba’s house, appellant leaned forward and asked Munoz if he could borrow a knife because it was a rough neighborhood. Munoz told appellant he did not have a knife.
At 12:30 or 1:00 a.m. the next morning, April 24, appellant returned to Zapata’s house, where he had attended the party earlier. He was alone in Ms. Aparicio’s car. Appellant told Zapata he had been “in a fight with some guy in Fresno and took his car.” Appellant suggested that they strip the car and take items, including speakers and a ball pump, from it. Zapata saw what appeared to be blood on the passenger seat but did not ask appellant about it. Instead, Zapata told appellant to get rid of the car because he did not want a stolen vehicle outside his house.
Amezcua, who also had been at Zapata’s house earlier and who was there when appellant returned, said that when appellant arrived at Zapata’s house with the victim’s vehicle, appellant was “quiet” and not acting normal. After the car was stripped, appellant asked Amezcua to follow him in a second car and pick him up after appellant “disposed” of the vehicle. Amezcua assumed appellant was going to burn the car.
Amezcua followed appellant to an area near Zediker and Shields Avenues, told appellant to get rid of the car, and said he would pick him up on the other side of the canal on Riverbend Avenue. Amezcua did not see appellant set the car on fire.
Amezcua picked up appellant a short time later and they went back to Zapata’s. They did not talk about the stolen car, and Amezcua had no idea the car’s owner had been murdered. Zapata and Mendez (another partier at Zapata’s house) both saw Amezcua, in his car, and appellant, in Ms. Aparicio’s car, leave Zapata’s place and return together about an hour later in Amezcua’s car. Zapata never asked what happened to the vehicle, and appellant did not volunteer this information.
Shortly before dawn, Amezcua gave appellant and Mendez a ride home. Amezcua dropped Mendez off first and, after Amezcua and appellant slept in Amezcua’s car for awhile, Amezcua dropped appellant off at his place.
That same day, Ms. Aparicio’s burned car was located. Her family reported her missing.
On Monday, April 25, Detective Sergio Toscano spoke with Ms. Aparicio’s family. Her friends Munoz and Velasco were also there. They told Toscano that appellant was the last person seen with Ms. Aparicio on Saturday night and offered to lead Toscano to appellant’s residence.
Detectives Toscano and David Trevino followed Munoz and Velasco to appellant’s residence. On the way, they passed an on-coming black car in which appellant was a passenger, but they did not know it at the time. The detectives talked to appellant’s mother and wife, who said he was not home. Munoz and Velasco left the detectives and began to follow the black car.
Soon Detective Toscano received a cell phone call from Munoz who said that “some guys” wanted to take appellant out to the country and kill him. Appellant claimed to them that “some busters” or gang members had taken Ms. Aparicio. Velasco convinced appellant’s assailants to turn appellant over to the detectives.
Munoz summoned the detectives and, when they arrived, they found Munoz and Velasco holding appellant. His hands were tied behind him with a canvas belt. Munoz and Velasco told Toscano that appellant confessed to “doing something to [Ms. Aparicio],” and they thought Ms. Aparicio was still be alive and being held captive somewhere.
Detective Toscano put appellant into the back of his police car. He had some abrasions above his left eye and some blood on his shirt. Toscano learned that Amezcua, who had been in the black car with appellant, might have some information about Ms. Aparicio’s disappearance and that he had previously lived in the area where Ms. Aparicio might be found.
Amezcua was taken into custody. He stated that he had taken a speaker box from the victim’s car. Some other items belonging to Ms. Aparicio were later found in an alley behind Amezcua’s apartment.
In the early morning hours of Tuesday, April 26, Detectives Toscano and Trevino obtained a Miranda (Miranda v. Arizona (1966) 384 U.S. 436) waiver from appellant and began questioning him. In the interview, a recording of which was played for the jury, appellant told the detectives he was not “really sure” who the men in the black car were but that they wanted to know what happened to “the girl.” Appellant first said he “kinda knew” Ms. Aparicio, then said he didn’t and, later still, said he had just met her for the first time. He said he was in Ms. Aparicio’s car the night she disappeared, along with someone named “Boly.” Ms. Aparicio dropped off Boly and then dropped him off at a park in Sanger around midnight.
Appellant said he then walked to two different friends’ houses, but got no response at their doors. Twenty to 25 minutes later, he saw Ms. Aparicio’s car pass by with two men in it. Appellant did not know the men, but argued with the driver, who he thought was a Bulldog gang member. He fought with the driver, who left the car’s engine running. Appellant then jumped into the car and drove to Zapata’s. Appellant claimed only Zapata was home and that he did not take anything from the car. Appellant admitted that the entire story was not a very likely one.
When asked why he burned Ms. Aparicio’s car, appellant said he did it because he didn’t know what to do, he was nervous, and he thought it belonged to a gang member. He told the officers that the burned car was “out in the country,” “over there by the canal.”
Appellant claimed to have heard nothing about Ms. Aparicio after she dropped him off and that he did not know where she was, although he did admit “something bad did happen.”
Appellant later stated that the others at Zapata’s house had gone through the car to look for items but that he had not. In one version of his story, he stated that he was “just standing there” while the others ransacked the car; in another, he said that he sat in the car while the others tried to get into the trunk. When asked by a detective if he had made a mistake, appellant said, “I probably did.”
Appellant repeatedly denied during the interview that he knew where Ms. Aparicio was or that he had harmed her.
Later in the interview, appellant changed his story and said that Ms. Aparicio was going to drop him off at the park but, when no one was there, she took him to Zapata’s. When they arrived, she began talking to Mendez. Appellant said that Ms. Aparicio and Mendez left Zapata’s house together in her car and went out in the country. Appellant and Amezcua followed them in Amezcua’s car. When they arrived at Mendez’s house, Mendez and Ms. Aparicio went into a shed in the back of the house. Appellant could hear arguing, yelling, and sounds “kinda like smacks.” Then it got quiet and appellant thought Mendez had killed Ms. Aparicio. Appellant knocked on the door to the shed, but Mendez did not answer. Appellant then “freaked out” and drove Ms. Aparicio’s car to the canal bank where he set it on fire. He then left the scene with Amezcua.
Appellant also said that he saw Mendez drag something wrapped in a black plastic bag from the shed, which he took down to the canal. Appellant thought he saw Ms. Aparicio’s body fall in the canal. At the end of the interview, appellant denied having sex with Ms. Aparicio.
In a second interview on Wednesday, April 27, appellant again waived his Miranda rights and agreed to talk to Detectives Toscano and Salinas. In this interview, appellant described the events that took place in the shed with Mendez and Ms. Aparicio. After 15 minutes, appellant said he saw Mendez pull something “wrapped in black” from the shed. Mendez told appellant to take Ms. Aparicio’s car; Amezcua told appellant to follow him.
Mendez put the body in the back of a car belonging to his brother. The three cars travelled to where Ms. Aparicio’s car was set on fire. Appellant then left the scene with Amezcua. As they drove off, appellant saw Mendez take “something” out of the car and put it in the canal. He again denied any involvement in Ms. Aparicio’s death.
Ms. Aparicio’s body was found Thursday, April 28, in an orange orchard furrow. She was partially concealed under a low-growing orange tree. She had abrasions and bruises from “head to toe”—on her legs, arms, hands, and face—and had an “extremely large” laceration on the right side of her face extending from the top of her head to the bridge of her nose, over her right eye and down to her cheek. Her shirt was pulled up and her bra ripped, exposing her breasts. She was not wearing underwear, and a pair of underwear was found within 10 feet of the body. Several of her fingernails were fractured. Her wallet, with her driver’s license, and her cell phone were found a mile from the body.
The parties stipulated that DNA collected from swabs of Ms. Aparicio’s vagina and rectum matched appellant’s DNA.
Michael Chambliss, M.D., conducted an autopsy on Ms. Aparicio. She had a large laceration on her head and a skull fracture, which could have been a fatal injury. She had injuries to her neck indicative of strangulation. Dr. Chambliss opined that the blunt force injuries to the head were the cause of the victim’s death, with strangulation also a factor. Dr. Chambliss testified that there were abrasions to the victim’s hips, thighs, knees, and ankles, and black marks on her body consistent with her being run over by the wheels and undercarriage of a car. The victim’s internal genitalia between the vagina and the anus revealed a “noticeable hemorrhage.” Dr. Chambliss opined that Ms. Aparicio’s death could have occurred anytime between April 22 and April 28.
DISCUSSION
1. Did the trial court err in admitting evidence of appellant’s interview with police?
Appellant advances several arguments in regard to the legality of the police interviews. He claims his interviews of April 26 and 27 should have been suppressed because they were not voluntarily made and because his rights under the Multilateral Vienna Convention on Consular Relations and Optional Protocol on Disputes, April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 (hereafter Vienna Convention) were violated when Mexican authorities were not notified of his arrest. He contends that the trial court’s denial of his motion to exclude these statements was error and requires reversal. We disagree.
A. Factual background
The trial court held an Evidence Code section 402 hearing to determine the admissibility of appellant’s interviews. At the hearing, Detective Toscano testified that, around 7:00 p.m. on the evening of April 25, he spoke with Ms. Aparicio’s family as well as Munoz and Velasco, who both thought appellant had something to do with Ms. Aparicio’s disappearance because he was the last one seen with Ms. Aparicio. The two took the detective to appellant’s residence, and subsequently called to say that the detective should respond to a location where a group wanted to take appellant out to the country “to kill him.” A second call from Munoz stated that they should come to Belmont and Academy Avenues, where Munoz and Velasco had detained appellant. Toscano and Detective Trevino arrived around 9:45 p.m. and found appellant with his hands tied behind his back. He had a small amount of blood on his shirt. Both Munoz and Velasco said that appellant had confessed to doing something to the victim and that she was still alive.
Detective Toscano untied appellant and placed him into an unmarked patrol car. He was not handcuffed. He was advised that the detectives were investigating and trying to locate Ms. Aparicio. Appellant was transported to the police department before midnight. He was placed in a holding cell while the detectives interviewed Amezcua, who also had been picked up. Prior to this time, Detective Toscano had not advised appellant of any charges that he contemplated filing against him.
Amezcua told the officers that appellant arrived at Zapata’s house between midnight and 2:00 a.m. driving Ms. Aparicio’s car, which he said he was going to set afire.
Detectives Toscano and Trevino began their interview with appellant at 1:11 a.m. Trevino advised appellant of his Miranda rights, which appellant waived. Toscano described appellant as coherent and alert. The interview lasted “three, four hours, give or take.” Toscano did not think that, during the interview, appellant ever got to the point where he was unable to focus or respond to the questions. During the interview, appellant admitted that he had burned Ms. Aparicio’s car. Following the interview, appellant was again placed in a holding cell.
Around 10:00 or 11:00 the next morning, Detective Toscano again contacted appellant, who had told them he would take them to the location where Ms. Aparicio’s car was located. Appellant had no difficulty showing the officer where the car was.
After that, appellant was taken back to the police station while officers executed a search warrant at the location pointed out by appellant. Appellant was then transported to the jail on Tuesday evening and booked for grand theft auto, arson, and possession of stolen property.
Another interview was conducted on Wednesday, April 27, at 6:00 p.m. Appellant was again advised of his Miranda rights. He appeared alert and responsive and had no difficulty understanding the questions or staying awake and being alert.
At the conclusion of Detective Toscano’s testimony at the Evidence Code section 402 hearing, defense counsel asked that the court note that appellant was arrested based only on the fact that the officer knew that Ms. Aparicio’s car had been burned, that Ms. Aparicio was missing, and that appellant was the last person seen with her. Defense counsel argued that the information, which consisted of the suspicions of others that appellant may have been involved, was not trustworthy. Defense counsel argued there was insufficient information to justify an arrest at that point.
The prosecutor argued that the detectives had sufficient information to detain or place appellant in custody because, in addition to the above information, the detectives found appellant with his hands tied behind his back by a group who wanted to take him “to the woods to kill [him],” and Munoz and Velasco told the detectives that appellant had confessed that he did “something” to Ms. Aparicio and that she was still alive.
The court ruled that there were exigent circumstances that justified detaining appellant. The court noted that the detective knew at the time that “people were going to do harm to [appellant] because they believe[d] that he had done harm or otherwise been involved with … the victim.” The court found a “sufficient showing to deny the motion as to the issue of an illegal arrest or detention prior to the … post-Mirandized confession.” The court further found that the period of time between when appellant was detained and Mirandized and later charged with arson, auto theft, and possession of stolen property was not unduly prolonged as to make the statements involuntary. And finally, because there was no information that appellant did not understand the English language or otherwise appeared to be unfamiliar with what was transpiring, the court found that there was no evidence that article 36 of the Vienna Convention compelled suppression of the interviews. In conclusion, the court stated:
“So based on the findings of the Court on the basis of an improper detention, the Miranda issue, the Vienna Convention, or the deprivation, the motion to withhold the evidence of … [appellant]’s responses to interrogation is denied.”
B. Applicable authority and analysis
Appellant first contends admission at trial of his interviews made to police on April 26 and 27 violated his constitutional rights because, although he was given Miranda advisements each time and each time waived his rights, the interviews were involuntarily made. We disagree.
An involuntary confession is inadmissible under the due process clauses of the 14th Amendment to the federal Constitution (Jackson v. Denno (1964) 378 U.S. 368, 385-386) as well as article I, sections 7 and 15 of the California Constitution (People v. Benson (1990) 52 Cal.3d 754, 778).
“A defendant’s admission or confession challenged as involuntary may not be introduced into evidence at trial unless the prosecution proves by a preponderance of the evidence that it was voluntary. [Citations.] A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity.… [¶] In deciding the question of voluntariness, the United States Supreme Court has directed courts to consider ‘the totality of circumstances.’ [Citations.] Relevant are ‘the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity’ as well as ‘the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.’ [Citation.]” (People v. Williams (1997) 16 Cal.4th 635, 659-660.)
On appeal, when reviewing the trial court’s determination that a confession was voluntary, we independently examine the record, but, to the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence. (People v. Weaver (2001) 26 Cal.4th 876, 921; People v. Howard (1988) 44 Cal.3d 375, 394.) The ultimate question “‘is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’” (People v. Massie (1998) 19 Cal.4th 550, 576.)
Appellant argues that his statements to police on April 26 and 27 were involuntary because (1) there is no indication that he was given access to food, water, or a place to sleep, or that his injuries were attended to throughout the lengthy time that he was held; (2) the interviewers repeatedly told him that his statements were lies and that he was not to be believed; and (3) the interviewers suggested that the people who beat him up were frustrated and that his family could be in danger but that, if appellant told the truth, the officers could protect his mother, wife, and unborn child.
In denying the motion to suppress, the trial court specifically found that the length of time and the conditions under which appellant was questioned did not make the statements involuntary. There is substantial evidence to support these findings. The first interview took place at 1:11 a.m., two hours after he was first detained, and it lasted three to four hours. This was followed by a five-hour gap before he was driven to various places between 10:00 and 11:00 a.m. to identify where the car had been left. He was booked into jail that evening at 11:00 p.m. and interviewed again the following day at 6:00 p.m. Although Detective Toscano could not say specifically what or when appellant had eaten, normal custom dictated that he be fed. During the interview, Toscano described appellant’s injuries only as “some scratches on your hand … and your ears” and “a little bit of blood on your shirt.” In addition, appellant was described at all pertinent times as alert, coherent, and able to understand the questions.
In People v. Hill (1992) 3 Cal.4th 959, 981, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, footnote 13, the court held that an eight-hour interrogation, in five separate sessions, over a 12-hour period, was not unduly lengthy and coercive. In Hill, the defendant was provided with food, beverages, and restroom breaks whenever he requested them. The record did not reflect that the defendant was unduly distressed or subjected to abusive or improper interrogation techniques. And most importantly,
“defendant never once requested any break in the interrogation or asked that it be terminated. This weighs heavily against his claim of excessively long questioning. He was twice given Miranda warnings, which he acknowledged both times in writing. The record reflects that he was fully aware he could terminate the interrogation at any time.” (People v. Hill, supra, at p. 981.)
Here, too, we find nothing in this scenario which suggests that it was unduly lengthy or that appellant was mistreated, rendering his statements involuntary. Appellant never asked for a break during the questioning, nor did he ask that it be terminated. And, in fact, at one point, Detective Toscano asked appellant, “Have we been … unreasonable, mean, disrespecting you, mistreating you in anyway?” And another time asked, “[W]e haven’t disrespected you, have we?” Appellant responded “No” to both questions.
We also disagree with appellant’s characterization of the detectives’ statements during interrogation as coercive threats. The officers’ repeated statements that they believed appellant was lying are not by themselves coercive threats. (See, e.g., In re Joe R. (1980) 27 Cal.3d 496, 515 [loud, aggressive accusations of lying did not amount to coercive threats].) While forceful and persistent, the statements made by the officers fell within the range of standard interrogation.
“The business of police detectives is investigation, and they may elicit incriminating information from a suspect by any legal means. ‘[A]lthough adversarial balance, or rough equality, may be the norm that dictates trial procedures, it has never been the norm that dictates the rules of investigation and the gathering of proof.’ [Citation.] ‘The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.’ [Citation.]” (People v. Jones (1998) 17 Cal.4th 279, 297-298.)
We also reject appellant’s assertion that the detectives coerced his statements by suggesting that they would “only follow their sworn duty to protect his family from violence if he were to help them out and give them a confession.” Appellant points to numerous instances in the transcript where he states that the detectives suggested that, because there was a group of people who had beaten appellant and were still frustrated, his family would be in danger and that the police would protect them only if appellant would “come clean.” Appellant specifically cites this statement from the interview, as well as others:
“There’s a lot of frustrated people out there, okay? And we’re getting information that they’re coming—calling in with regarding you being responsible, okay? And I’m not making that up, they’re just little bits and pieces that they’re hearing, finding out and maybe some other things that came out of that car who, who was … and it’s coming from you and in possession of other people. You’re gonna have a problem there if that keeps going on and going on, you understand what I’m saying?”
At one point appellant expressed concern for what would happen to his family, and the detective replied, “We’ll be there with you. Just trust us.” And when appellant was hesitant to “[p]ut it down,” he asked, “And you’re gonna help my family?” The detective replied, “We will work with you. We’re gonna do all this together until the end, until we get this thing resolved and find her, okay?” The following conversation then occurs between appellant and the detective:
“[Appellant:] I’m not sure about my family, man.
“[Detective:] Who do you think is gonna help your family …? It’s gonna be us, okay? [¶] … [¶] Can’t trust your homeboys, can you?
“[Appellant:] No.
“[Detective:] Who can you trust? [¶] … [¶] We’re the only ones you can trust. [¶] … [¶] You understand that … we’re the only ones that you can trust right now. We’re trying to help you, we wanna do the right thing … alright? But you need to come forward now, alright? And then we’ll, we’ll talk about your family.”
In Lynumn v. Illinois (1963) 372 U.S. 528, 534, the defendant’s confession was made only after police told her financial aid for her infant children would be cut off and her children taken from her if she did not cooperate. Here, no such threat was made. Viewed in context, we do not find the detectives’ statements were an implied threat that his family would suffer adverse consequences if he did not confess. In fact, it was after the various statements were made that appellant changed his story and implicated Mendez as the killer.
Finally, appellant contends that he was entitled under article 36 of the Vienna Convention and section 834c to have an official from the consulate of Mexico notified promptly of his arrest and that he was entitled to notice of his right to communicate with an official from the consulate. (See People v. Corona (2001) 89 Cal.App.4th 1426, 1428-1429.) He contends the police department’s failure to comply with these requirements is “a viable factor in the totality of circumstances which militate against a finding of voluntariness.”
Under article 36, paragraph 1(b) of the Vienna Convention, the “competent authorities” must, “without delay,” inform a foreign national who has been arrested or detained that he or she has the right to communicate with his or her consulate. (Vienna Convention, supra, 21 U.S.T. at p. 101.) Section 834c was enacted in 1999 to implement the Vienna Convention. It provides, as relevant here: “[E]very peace officer, upon arrest and booking or detention for more than two hours of a known or suspected foreign national, shall advise the foreign national that he or she has a right to communicate with an official from the consulate of his or her country .…” (§ 834c, subd. (a)(1).)
Though appellant concedes People v. Corona, supra, 89 Cal.App.4th at pages 1429-1430, held the exclusionary rule is not a remedy for violation of the treaty’s consular notification provisions, he argues that analysis “should be held in abeyance since there will soon be a clear answer from the United States Supreme Court.”
But we determine that appellant’s argument must fail, pursuant to the United States Supreme Court’s opinion in Sanchez-Llamas v. Oregon (2006) 548 U.S. 331. There the Supreme Court addressed a Mexican national’s claim in a petition for writ of habeas corpus that his incriminating statements to the police should have been suppressed because, among other things, the authorities had failed to comply with article 36 of the Vienna Convention. Assuming, without deciding, that article 36 of the Vienna Convention “grants individuals enforceable rights,” the Supreme Court ruled that “neither the Vienna Convention itself nor our precedents applying the exclusionary rule support suppression of Sanchez-Llamas’ statements to police.” (Sanchez-Llamas v. Oregon, supra, at pp. 343, 350.)
In so ruling, the Supreme Court observed that “Article 36 has nothing whatsoever to do with searches or interrogations. Indeed, Article 36 does not guarantee defendants any assistance at all. The provision secures only a right of foreign nationals to have their consulate informed of their arrest or detention—not to have their consulate intervene, or to have law enforcement authorities cease their investigation pending any such notice or intervention.” (Sanchez-Llamas v. Oregon, supra, 548 U.S. at p. 349.) Further, the Supreme Court stated that a foreign national’s due process rights were effectively protected by other constitutional and statutory requirements. “A foreign national detained on suspicion of crime, like anyone else in our country, enjoys under our system the protections of the Due Process Clause. Among other things, he [or she] is entitled to an attorney, and is protected against compelled self-incrimination.” (Id. at p. 350.)
No single circumstance determines whether a statement was the product of coercion. Such a conclusion depends upon a consideration of the entirety of the conduct of the officers and deputies, the circumstances of the interrogations, and the characteristics of the defendant. Here, we find no coercive conduct on the part of the officers or coercive elements in the circumstances of the interrogation. We conclude that appellant’s statements during the April 26 and 27 interrogations were voluntary, and that the admission of these statements into evidence was not error.
2. Did the prosecutor commit misconduct?
Appellant contends the prosecutor committed misconduct on two occasions during questioning of witnesses, which resulted in an infringement of his federally guaranteed due process rights. Appellant claims that reversal of his conviction is required because the prosecutor’s questions were “simply and directly elicited to bring [inadmissible] evidence before the jury. The two errors were so prejudicial that they could not have been cured by the court’s ruling and curative instruction.” We disagree.
Misconduct by a prosecutor is error under state law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. (People v. Morales (2001) 25 Cal.4th 34, 44.) A prosecutor’s misconduct violates the 14th Amendment to the federal Constitution, however, only when it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819.) And we will not reverse a criminal conviction for prosecutorial misconduct unless we are persuaded, based on a review of the record as a whole, that the error resulted in a miscarriage of justice. (People v. Green (1980) 27 Cal.3d 1, 29-30, overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3; see also People v. Warren (1988) 45 Cal.3d 471, 480 [no reversal for prosecutorial misconduct unless defendant was prejudiced].)
As we will discuss, the record does not support the conclusion that appellant was denied due process or that the prosecutor’s actions were deceptive or reprehensible. Neither does appellant show prejudice.
Appellant points specifically to the following two instances during questioning in which he claims misconduct occurred:
(1) Munoz and appellant had known each other a long time. During the prosecutor’s questioning of Munoz, the following exchange occurred:
“[Prosecutor:] Q Can you see the gentleman at the end of the table here in the kind of dark gray shirt?
“[Munoz:] A Yes, sir.
“Q Do you know him?
“A Yes, sir.
“Q What name do you know him by?
“A Wicked.
“[Defense counsel]: Objection, Your Honor. Ask for a side bar.
“(Thereupon a conversation was held in the hallway, not reported.)
“The Court: Ladies and gentlemen, I’ll instruct you to disregard the last answer of this witness as to how he referred to [appellant]. You’re to disregard that for all purposes. [¶] And if we could ask the witness to refer to people as you know them by their given name.
“[Munoz]: All right, sir.”
At the end of the day, defense counsel made a motion for mistrial based on the objection. According to defense counsel, the parties had agreed prior to trial “that the type of issues that that nickname engenders is not going to infiltrate this trial.” The trial court denied the motion, stating that it thought the appropriate steps had been taken to avoid prejudice.
(2) A defense motion in limine sought to preclude the prosecution from introducing photographs or evidence of duct tape found in the orchard, as forensic testing had failed to establish any connection between the duct tape and the crime or victim. During the in limine motion, the prosecutor agreed that those particular photographs would not be introduced. In reviewing the various photographs to be admitted, the prosecutor withdrew exhibits 27, 28, and 29—all showing duct tape.
At trial, Detective Mark Chapman testified that he had been involved in the crime scene investigation of the orchard where Ms. Aparicio’s body was found. The prosecutor then asked the detective various questions about crime scene photographs of the area. After reviewing a photograph of a beer bottle and a piece of burnt rubber, the detective explained that, in documenting a crime scene, everything is documented “because you only have one shot at this,” and the hope is to later sort out what is relevant. The prosecutor then asked the detective about exhibit 23, which included a placard with the number 7 on it. When asked about the significance of the placard’s location, the detective stated, “[T]here was a small piece of silver-colored duct tape that was present.” Defense counsel immediately objected, and the prosecutor moved to withdraw the exhibit. Defense counsel then asked that the jury be admonished and the court did so, telling the jury not to take into consideration “anything that has been referenced regarding Number 23 or the description or the response by the witness.”
It is misconduct for a prosecutor to ask questions calling for inadmissible answers or to intentionally elicit inadmissible testimony. (People v. Smithey (1999) 20 Cal.4th 936, 960.) Such conduct is exacerbated if the prosecution continues to attempt to elicit such evidence after defense counsel has objected. (People v. Bell (1989) 49 Cal.3d 502, 532.)
In our view, the record does not show the prosecutor asked the challenged questions for an improper purpose. Here, both Munoz’s reference to appellant as “Wicked” and Detective Chapman’s response to the significance of the evidence placard in the photograph appear to be inadvertent. Defense counsel himself stated, with reference to the nickname, that he had “no reason to believe” and, in fact, did not believe that the prosecutor “intentionally did this.” As to the prosecutor’s question to Detective Chapman, neither does it appear that the prosecutor intentionally elicited the detective’s response.
As the result of both answers, the trial court instructed the jury to disregard the responses. Appellant concedes the trial court admonished the jury, but he argues “[t]he two errors were so prejudicial that they could not have been cured by the court’s ruling and curative instruction.”
Reviewing the entire record, we believe the court’s admonitions and instructions were adequate to cure any harm resulting from the prosecutor’s questions. (People v. Herring (1993) 20 Cal.App.4th 1066, 1074 [to determine whether an admonishment is effective, we must consider the statements in context].) The reference to appellant’s nickname and the reference to a piece of duct tape at the crime scene were not part of a constant barrage of unethical conduct, nor were the statements outrageous or shocking. Instead, both references were extremely brief. In addition, the jury knew Munoz and appellant were long-time acquaintances. Nicknames are not uncommon among friends. And Detective Chapman explained that everything at a crime scene was photographed and recorded, whether it was relevant or not. No further reference was made to either appellant’s nickname or the duct tape. Furthermore, the court promptly admonished the jury both times, and it is presumed the jury followed the court’s instructions to disregard the evidence. (People v. Rocha (1971) 3 Cal.3d 893, 901 [“It must be presumed that the jurors acted in accordance with the instructions and disregarded the [improper] question”].)
In People v. Hill, supra, 17 Cal.4th 800, the court concluded the trial court’s admonitions were ineffective. The prosecutor had engaged in “a constant barrage of … unethical conduct, including misstating the evidence, sarcastic and critical comments demeaning defense counsel, and propounding outright falsehoods” (id. at p. 821), such that the court’s admonishments were insufficient to cure the harm. “Given … the onslaught of the misconduct that occurred in this case, it became increasingly difficult for the jury to remain impartial. ‘It has been truly said: “You can’t unring a bell.”’ [Citation.] [In Hill], the jury heard not just a bell, but a constant clang of erroneous law and fact.” (Id. at pp. 845-846.)
Here, even if we assume misconduct did occur, it did not amount to an egregious pattern of conduct that rendered the trial fundamentally unfair in denial of appellant’s federal constitutional right to due process of law. Even assuming the prosecutor’s conduct constituted a deceptive or reprehensible method to persuade the jury, in violation of state law, such misconduct was not prejudicial. Given the entirety of the record, any misconduct was not prejudicial pursuant to either Chapman v. California (1967) 386 U.S. 18, 24, or the lesser standard of People v. Watson (1956) 46 Cal.2d 818, 836.
3. Did the trial court err in admitting photographs of the victim?
Appellant argues the trial court abused its discretion under Evidence Code section 352 and deprived him of a fair trial by admitting photographs of the deceased victim.
Prior to trial, the prosecutor moved to admit photographs of the victim at the crime scene and autopsy photographs. At the hearing, the trial court reviewed each of the photographs.
Exhibits 16, 17 and 18 showed the victim’s body in the same position, but from different perspectives and distances. Defense counsel objected to exhibits 16 and 18 as cumulative and gruesome. The court overruled the objection. Exhibits 19 and 20 were similar photographs of the victim at the scene with evidence markers. Defense counsel again objected on the basis that the photographs were cumulative.
Defense counsel objected to exhibit 32, an autopsy photograph of the victim’s head, as prejudicially gruesome. The prosecutor argued that the photograph supported his theory that there were two overlapping causes of death, strangulation and blunt force trauma, and that this particular photograph was “the least offensive” to show the blunt force trauma. The prosecutor noted that he elected not to use the photographs showing the results of the strangulation, as they included “blood vessel[s] rupturing in the eyes” and “invasive [autopsy] procedure to remove parts of her body.” The court allowed exhibit 32 over objection. The court ordered the genitals of the victim’s body blacked out in exhibit 33.
Defense counsel agreed to admission of exhibit 34 without objection, but argued exhibit 35, a similar photograph from a different angle, would be cumulative. The prosecutor argued both photographs were necessary to establish that the victim had been run over by a car. The trial court allowed both exhibits 34 and 35, which it described as showing “different angles, and 35 being a closer view showing what appears to be a more traumatic injury at the hip.”
Defense counsel did not object to photographs of the victim’s hands. (Exhibits 41, 42, 43, 44, 45.)
A trial court has broad discretion in determining whether evidence is relevant. (People v. Scheid (1997) 16 Cal.4th 1, 14.) Photographs of a crime scene are relevant to show that a crime was committed and to corroborate or illustrate witness testimony about the crime. (Id. at pp. 14-15, 18.) In Scheid, the court rejected the defendant’s argument that a photograph of the murder victim’s “bloodied, lifeless body” was irrelevant because the defendant was not at the scene during the actual shooting; the defendant was being prosecuted on a felony-murder theory and thus there was no issue of malice; and the parties were willing to stipulate as to the cause of death and the murder weapon. (Id. at pp. 14-15.) The Scheid court stated that the defendant’s argument was “based upon an inappropriately narrow view of the concept of relevancy.” (Id. at p. 14.) The court explained that a photograph that showed a murder had been committed was relevant even if it was cumulative to other evidence, and the only ban on cumulative evidence arose under Evidence Code section 352. (Scheid, supra, at pp. 15-16.) Further, the photograph did not lose its relevancy merely because malice was not at issue or because the defendant did not dispute the circumstances of the crime. (Id. at pp. 16-17.) The court reasoned that the prosecution was not obligated to prove details solely through witness testimony and was entitled to establish the fact that a murder had been committed “through the use of the most probative and compelling evidence available .…” (Ibid.)
But even relevant evidence should be excluded under Evidence Code section 352 if the potential for prejudice outweighs probative value. “‘The admission of photographs of a victim lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or inflammatory. [Citations.] The court’s exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect. [Citations.]’ [Citation.]” (People v. Scheid, supra, 16 Cal.4th at p. 18.) Generally, a jury is entitled to see photographs of a murder victim even if the photographs are cumulative of testimonial evidence. (Id. at p. 19.) The courts recognize that victim photographs in homicide cases are always disturbing, but they need not be excluded unless they are “unduly gory or inflammatory.” (Ibid.) For example, a court may be required to exclude photographs that depict “a close-up view of the victims’ wounds”; a “revolting portraiture displaying horribly contorted facial expressions”; badly decomposed bodies; or bodies disfigured during autopsy. (Id. at pp. 19-20.) Further, inappropriate use of photographs may occur if the prosecution seeks to reinforce the potential impact of the photographs with multiple exposures of similar views, or by unduly belaboring the issue by using the photographs extensively in examining witnesses. (Id. at p. 20.)
Here, the photographs were relevant to prove the facts that the victim had been raped, run over by a car, and strangled, leading to her death. Exhibits 16, 17, 18, 19, and 20 corroborated Detective Chapman’s testimony of where the body was found and the condition it was in when it was found. Exhibits 32, 33, 34, and 35 corroborated the coroner’s description of the victim’s injuries and the possible causes of death.
We have reviewed the nine photographs and, although by their nature they are unpleasant to view, they are not unduly gruesome or inflammatory. There are five photographs showing the body in the orange orchard. The victim’s face is only partially visible in the photographs; her body is covered in red and black bruises. (Exhibits 16-20.) There are three autopsy photographs of the victim’s lower body covered in bruises. No autopsy incisions are evident. (Exhibits 33-35.) The photograph that is the most disturbing is that of the right side of the victim’s head, which shows a large gash. But the coroner’s description of the victim’s injuries and autopsy findings was as disturbing as were the photographs presented to the jury, thus diminishing the potential that the photographs would impermissibly sway the jury. (See People v. Scheid, supra, 16 Cal.4th at p. 20.)
For instance, Dr. Chambliss described the head wound as “a large abrasion around a very large laceration which—actually that’s one portion of the laceration which goes up onto the top of the head and down on the inside of the right eye up to the bridge of the nose.” Dr. Chambliss testified that there was an area of damage to the skull in that location as well. Dr. Chambliss testified that the injury had “the likelihood of being fatal because of the underlying injuries not only to the skull, but also to the brain.” Dr. Chambliss also testified that the victim had injuries consistent with strangulation: round-type hemorrhages on her neck and small, round, red-type marks in her eyes. He described “obvious areas of hemorrhage” of the muscles and soft tissue around the airway in the victim’s neck.
The photographs were relevant to the prosecution theory that Ms. Aparicio had been strangled and run over by a car, injuries which led to her death. The fact that appellant stipulated at trial that it was his sperm found in Ms. Aparicio’s vagina and rectum did not change this. A defendant’s not guilty plea puts all elements of the crime in dispute. (People v. Waidla (2000) 22 Cal.4th 690, 723.) The photographs were not so graphic that they might overcome the jury’s rationality. The trial court could reasonably conclude any potential for prejudice was minimal and there was sufficient probative value to warrant admission. Accordingly, the court did not abuse its discretion or deprive appellant of a fair trial by admitting the photographs.
4. Did the trial court err when it refused to instruct on the absence of flight?
After his arrest for arson and vehicle theft, appellant was released from custody. He later surrendered himself for arrest on the murder charge after Ms. Aparicio’s body was found. Appellant argues that the trial court erred when it denied his request for a pinpoint instruction on the absence of flight. We disagree.
Appellant requested that the court give a “reverse flight instruction.” During the on-the-record discussions regarding the requested instruction, the court stated:
“I have referenced People vs. Williams [(1997)] 55 Cal.App.4th 648.… I think the Court makes it clear in Williams citing another California Supreme Court case.… I think all clearly stand for the proposition that there is not either a sua sponte … requirement … for the lack of flight, if you will, instruction, but it ceases to have relevance, although the Court is given wide discretion to consider it if it wishes to do so. I think it also should be pointed out that the cases which stand for the proposition, I think, that you would advocate go to the area of reciprocal discovery generally. And that, the Court feels, is significantly different from what we have before us now. [¶] … [S]o that is the basis for my declination to include your special instruction regarding lack of flight.”
Appellant contends that the court’s refusal to give his requested instruction was error. Appellant acknowledges that People v. Williams held that due process does not require instruction on the absence of flight. But he argues that the Williams court specifically stated that it did not “intend to proscribe the broad discretion of the trial court in giving an appropriate instruction on the absence of flight when supported by the evidence and of sufficient relevance in the context of the case.” (People v. Williams, supra, 55 Cal.App.4th at p. 652.) As substantial evidence to support the giving of his requested instruction, appellant points to his lack of flight after he was released from interrogation even though he had a clear understanding from the police that he was their prime suspect in Ms. Aparicio’s disappearance, as well as his immediate surrender when he was charged with murder.
Section 1127c requires the court to instruct the jury on flight, when supported by the record, as showing consciousness of guilt and states that “[n]o further instruction on the subject of flight need be given.” In People v. Green, supra, 27 Cal.3d 1, the defendant contended on appeal that the trial court erred in refusing to give his proffered instruction that the absence of flight by a suspect may be considered by the jury as circumstantial evidence that he had an innocent frame of mind. (Id. at p. 36.) Our Supreme Court found that “the absence of flight is so ambiguous, so laden with conflicting interpretations, that its probative value on the issue of innocence is slight.” (Id. at p. 39.) Therefore, the court concluded “that the trial court did not err in refusing to give the proffered instruction.” (Ibid., fn. omitted.)
“In People v. Green [, supra, ] 27 Cal.3d 1, 39-40 and footnote 26, we held that refusal of an instruction on absence of flight was proper and was not unfair in light of … section 1127c. We observed that such an instruction would invite speculation; there are plausible reasons why a guilty person might refrain from flight. (Green, supra, 27 Cal.3d at pp. 37, 39.) Our conclusion therein also forecloses any federal or state constitutional challenge based on due process. (See also People v. Williams[, supra, ] 55 Cal.App.4th 648, 652-653 [rejecting constitutional argument with regard to instruction on absence of flight].)” (People v. Staten (2000) 24 Cal.4th 434, 459.)
Notwithstanding the Williams court’s statement that a trial court has discretion to give a requested instruction on the absence of flight when supported by the evidence, we are bound by our Supreme Court’s holding in Green and Staten that refusal to give such an instruction is proper and not unfair in light of section 1127c. We are also bound by the court’s conclusion that the refusal does not violate due process. (People v. Green, supra, 27 Cal.3d at p. 39; People v. Staten, supra, 24 Cal.4th at p. 459; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Further, we find that appellant cannot show that he was prejudiced by the trial court’s refusal to give the requested instruction. It is merely speculative that the jury would have reached a different verdict had the instruction been given. (Cf. People v. Staten, supra, at p. 459.)
5. Are CALCRIM Nos. 220 and 222 constitutionally deficient?
The trial court instructed the jury on reasonable doubt pursuant to CALCRIM No. 220, as follows:
“The fact that a criminal charge has been filed against [appellant] is not evidence that the charge is true. You must not be biased against [appellant] just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves [appellant] guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty.”
This was immediately followed by CALCRIM No. 222, which told jurors, in pertinent part: “You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.”
Appellant now contends these instructions, individually and when read together, limited the jury’s determination of reasonable doubt to the evidence received at trial and precluded it from considering the absence of evidence connecting him to the crimes in determining whether reasonable doubt existed. The error, he says, deprived him of his federal constitutional rights to due process. We have rejected this argument (People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093), as have other courts (e.g., People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510). We see no reason to revisit our previous holding.
People v. McCullough (1979) 100 Cal.App.3d 169, on which appellant relies, does not assist him. In that case, the jury asked a question concerning the elements of the charged crime. When the court reconvened, other questions were invited. During a discussion between the court and jurors on the concept of reasonable doubt, a juror asked, “‘So then the doubt must arise from evidence?’” The trial court responded affirmatively, an answer the appellate court determined misled the jury, since reasonable doubt may grow out of a lack of evidence as well as the evidence adduced. (Id. at pp. 180-182; see Johnson v. Louisiana (1972) 406 U.S. 356, 360; People v. Simpson (1954) 43 Cal.2d 553, 566.)
Here, by contrast, the trial court did not tell the jury that reasonable doubt must arise from the evidence and, given the court’s instructions as a whole, it is not reasonably likely jurors understood CALCRIM Nos. 220 and 222, individually or collectively, to preclude their consideration of any lack of evidence in determining whether reasonable doubt existed. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Westbrooks. supra, 151 Cal.App.4th at pp. 1509-1510; see Victor v. Nebraska (1994) 511 U.S. 1, 22-23 [reasonable doubt instruction did not violate defendant’s constitutional rights when there was no reasonable likelihood jurors applied instructions in way that violated Constitution]; Estelle v. McGuire (1991) 502 U.S. 62, 72 [challenged portion of instruction must be viewed in context of instructions as whole; reviewing court inquires whether there is reasonable likelihood jury applied instruction in way that violates Constitution].)
6. Must the parole revocation fine be stricken?
Appellant contends the trial court erred in imposing a fine of $10,000 pursuant to section 1202.45, which was stayed pending successful completion of parole. Respondent concedes the issue, and we agree.
Such a fine is not applicable in cases where the defendant’s sentence includes a term of life without parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185.) The fine should not have been imposed because appellant was sentenced to life without the possibility of parole.
DISPOSITION
The trial court is ordered to amend the abstract of judgment in this matter to delete the $10,000 section 1202.45 fine which was ordered and stayed pending successful completion of parole. In all other respects, the judgment is affirmed.
WE CONCUR: CORNELL, Acting P.J., KANE, J.